If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

April 20, 2023

9:20 a.m.

v No. 357848

Wayne Circuit Court

RONNIE LAMONT SPEARS, LC No. 16-002012-01-FC

Defendant-Appellant.

Before: CAVANAGH, P.J., and BOONSTRA and RIORDAN, JJ.

RIORDAN, J.

Defendant appeals as on leave granted1the trial court’s order denying his motion for relief 

from judgment under MCR 6.502, in which he sought to withdraw his guilty plea in the trial court. 

Defendant pleaded guilty to one count of second-degree murder, MCL 750.317, and one count of 

possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He

was sentenced to 20 to 50 years’ imprisonment for second-degree murder, and two years’

consecutive imprisonment for felony-firearm. On appeal, defendant argues that his plea-based 

convictions must be vacated because the trial court violated his constitutional right of selfrepresentation, his guilty plea was invalid under MCR 6.302, and his guilty plea was the result of 

coercion. Relatedly, defendant argues that he has established entitlement to relief from judgment 

under the applicable court rules. We affirm.

I. BACKGROUND

This case arises from defendant’s guilty plea in the trial court. Defendant was charged 

with one count of first-degree premeditated murder, MCL 750.316, one count of intentionally 

discharging a firearm at a dwelling or potentially occupied structure (intentional discharge), MCL 

750.234b, and one count of felony-firearm. On the first day of trial, defendant accepted a plea 

offer and pleaded guilty to second-degree murder and felony-firearm in exchange for dismissal of 

 

1 This case is before this Court on remand for consideration as on leave granted pursuant to our

Supreme Court. People v Spears, 509 Mich 1053 (2022).
-2-

the counts of first-degree premeditated murder and intentional discharge, with a sentencing 

agreement of 20 to 50 years’ imprisonment for second-degree murder and two years’ imprisonment 

for felony-firearm.

At defendant’s sentencing, he, with then-newly retained counsel, orally moved to withdraw 

his guilty plea, arguing that his plea was invalid because he was “highly medicated on Seroquel”

at the time of the plea and that he did not fully understand the nature of what was occurring. 

Further, defendant argued that his “so-called allocution” was made by his prior counsel, not him. 

The trial court, finding no error in its acceptance of defendant’s guilty plea, declined to allow 

defendant to withdraw his plea. The trial court then sentenced defendant consistent with the 

prosecution’s plea offer, as described earlier.

Defendant subsequently moved again, now in a written motion and through appointed 

appellate counsel, to withdraw his guilty plea. Defendant also alternatively requested a Ginther2

hearing. In particular, defendant argued that his initial trial counsel’s ineffective assistance 

prevented him from tendering a knowing, intelligent, and voluntary plea. At another hearing, the 

trial court again denied defendant’s motion to withdraw his guilty plea. The trial court also denied 

defendant’s request for a Ginther hearing, stating that there was nothing to indicate ineffective 

assistance by defendant’s initial trial counsel during the plea process.

Defendant applied for leave to appeal in this Court, which we denied. People v Spears, 

unpublished order of the Court of Appeals, entered October 15, 2018 (Docket No. 344921). Our

Supreme Court also denied defendant’s application for leave to appeal. People v Spears, 504 Mich 

852 (2019).

Defendant subsequently filed a motion, pursuant to MCR 6.502, in the trial court for relief 

from judgment. He once again challenged his plea-based convictions. Defendant asserted four 

separate grounds for relief, stating that these issues “have not been previously raised on these facts 

in any prior hearing, appeal, or MOTION.” Specifically, defendant argued that: (1) his initial trial 

counsel provided ineffective assistance, and the trial court improperly denied his right of selfrepresentation; (2) the trial court violated MCR 6.302 when accepting his plea because it omitted 

questioning required by that court rule, including questioning required by People v Jaworski, 387 

Mich 21; 194 NW2d 868 (1972), and the plea lacked a sufficient factual basis and was otherwise 

involuntary; (3) the trial court, in taking his plea, applied coercion in violation of People v 

Killebrew, 416 Mich 189; 330 NW2d 834 (1982), by actively participating in the plea negotiations; 

and (4) appointed appellate counsel provided ineffective assistance by failing to raise the 

meritorious issues raised in the instant motion.

The trial court denied the motion for relief from judgment. The trial court explained that 

initial trial counsel adequately represented defendant, that defendant was not denied his right of 

self-representation because he never made an unequivocal request to represent himself, that the 

court complied with the relevant court rules when taking his plea, that the court did not violate 

Killebrew, and that appointed appellate counsel did not provide inadequate assistance.

 

2 See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-3-

We denied defendant’s application for leave to appeal. People v Spears, unpublished order 

of the Court of Appeals, entered October 15, 2021 (Docket No. 357848). The Supreme Court then 

remanded the case back to us with the instruction to consider the matter as if we originally had 

granted leave. People v Spears, 509 Mich 1053 (2022).

II. STANDARDS OF REVIEW

“We review a trial court’s decision on a motion for relief from judgment for an abuse of 

discretion and its findings of facts supporting its decision for clear error.” People v Swain, 288 

Mich App 609, 628; 794 NW2d 92 (2010). “A trial court abuses its discretion when its decision 

falls outside the range of reasonable and principled outcomes or makes an error of law.” Id. at 

628-629 (citations omitted). “[A] trial court’s findings of fact are clearly erroneous if, after a 

review of the entire record, the appellate court is left with a definite and firm conviction that a 

mistake has been made.” People v McSwain, 259 Mich App 654, 682; 676 NW2d 236 (2003) 

(quotation marks and citation omitted).

Similarly, a trial court’s decision regarding a defendant’s request to represent himself or 

herself is reviewed for an abuse of discretion. See People v Anderson, 398 Mich 361, 367; 247 

NW2d 857 (1976); People v Hicks, 259 Mich App 518, 521; 675 NW2d 599 (2003), abrogated in 

part on other grounds, People v Jones, 494 Mich 880 (2013). A trial court’s ruling on a motion to 

withdraw a guilty plea likewise is reviewed for an abuse of discretion. People v Pointe-Bey, 321 

Mich App 609, 615; 909 NW2d 523 (2017). 

“A claim of ineffective assistance of counsel presents a mixed question of fact and 

constitutional law.” People v Isrow, 339 Mich App 552, 531; 984 NW2d 528 (2021) (quotation 

marks and citation omitted). “All findings of fact are reviewed for clear error, while the legal 

questions are reviewed de novo.” Id. (quotation marks and citation omitted). Because the trial 

court never held a Ginther hearing, our review of this issue is limited to errors apparent from the 

record. See People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000).

III. ANALYSIS

A. LEGAL STANDARDS

MCR 6.508 governs entitlement to relief on a motion for relief from judgment, and it 

provides, in relevant part:

The defendant has the burden of establishing entitlement to the relief 

requested. The court may not grant relief to the defendant if the motion

* * *

(3) alleges grounds for relief, other than jurisdictional defects, which could 

have been raised on appeal from the conviction and sentence or in a prior motion 

under this subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal or in the prior 

motion, and
-4-

(b) actual prejudice from the alleged irregularities that support the claim for 

relief. As used in this subrule, “actual prejudice” means that,

* * *

(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo 

contendere, the defect in the proceedings was such that it renders the plea an 

involuntary one to a degree that it would be manifestly unjust to allow the 

conviction to stand;

(iii) in any case, the irregularity was so offensive to the maintenance of a 

sound judicial process that the conviction should not be allowed to stand regardless 

of its effect on the outcome of the case . . . .3

B. SELF-REPRESENTATION

First, defendant argues that his convictions must be vacated because the trial court 

unconstitutionally denied his right of self-representation. We disagree.

“The right of self-representation is secured by both the Michigan Constitution, Const 1963, 

art 1, § 13, and by statute, MCL 763.1.” People v Dunigan, 299 Mich App 579, 587; 831 NW2d 

243 (2013). “The right of self-representation is also implicitly guaranteed by the Sixth 

Amendment of the United States Constitution.” Id. “[A]lthough the right to counsel and the right 

of self-representation are both fundamental constitutional rights, representation by counsel, as a 

guarantor of a fair trial, is the standard, not the exception, in the absence of a proper waiver.” 

People v Russell, 471 Mich 182, 189-190; 684 NW2d 745 (2004) (quotation marks and citation 

omitted). 

To invoke the right of self-representation: (1) a defendant must make an 

unequivocal request to represent himself, (2) the trial court must determine that the 

choice to proceed without counsel is knowing, intelligent, and voluntary, and (3) 

 

3

“Good cause” for failure to raise grounds on an earlier appeal may be established by showing 

ineffective assistance of appellate counsel. See People v Reed, 449 Mich 375, 382; 535 NW2d 

496 (1995). Defendant argues that his appointed appellate counsel was ineffective for failure to 

raise the instant issues in his earlier challenge to his plea-based convictions. Because we conclude 

that none of these issues have merit, we need not address whether defendant has shown “good 

cause.” 

We also note that MCR 6.508(D)(3)(b)(ii) defines “actual prejudice,” in the context of a challenge 

to a plea-based conviction, as a defect in the proceedings that “renders the plea an involuntary one 

to a degree that it would be manifestly unjust to allow the conviction to stand.” Most of the instant 

issues do not relate to the allegedly involuntary nature of the plea, but rather the alleged failure of 

the plea to be “understanding” and “accurate.” See MCR 6.302(B) and (D). Regardless, because 

the underlying issues have no merit, we need not address whether defendant has shown “actual 

prejudice.” 
-5-

the trial court must determine that the defendant’s acting as his own counsel will 

not disrupt, unduly inconvenience and burden the court and the administration of 

the court’s business. [Dunigan, 299 Mich App at 587 (quotation marks and citation 

omitted).]

According to defendant, the trial court unconstitutionally denied his right of selfrepresentation by failing to address his request to represent himself. Defendant relies on a June 

27, 2016 letter to the trial court as being an unequivocal request for self-representation. Defendant 

noted that the trial court initially stated at a July 15, 2016 pretrial hearing that it would address the 

letter’s concerns following the determination of competency, but it never did so. Defendant 

particularly emphasizes the letter’s statements that he “wanted to fire his trial counsel and that he 

‘would like to continue forward without him,’ ” and that he “could ‘start trial while representing 

[himself].’ ” Defendant further argues that the trial court’s failure to address his request is 

structural error and requires that his convictions be vacated.

However, defendant never unequivocally requested to represent himself, so the trial court 

did not abuse its discretion by “failing” to address this request or by otherwise “denying” selfrepresentation. Absent an unequivocal request, the trial court had no duty to determine whether 

defendant knowingly, intelligently, and voluntarily wished to represent himself, or whether selfrepresentation would have disrupted, inconvenienced, or burdened the court. See Anderson, 398 

Mich at 367. Indeed, defendant actually was requesting substitute counsel, as clarified by his oral 

motion for new counsel at a September 9, 2016 pretrial hearing. Defendant only mentioned selfrepresentation once, and that was in the mere passing reference in his June 27, 2016 letter that he

could represent himself if no substitute representation was possible in time for trial. This reference 

to self-representation, which defendant never mentioned when later orally requesting new counsel 

in the trial court, therefore, was not an unequivocal request. Rather, it can be better characterized 

as the defendant merely musing on the feasibility of self-representation on an interim basis in 

conjunction with his request for new counsel. 

Further, to the extent that there is any ambiguity between defendant’s request for new 

counsel and his isolated mention of self-representation, we note that such ambiguity has defeated 

a defendant’s asserted denial of the right of self-representation in other cases. See Russell, 471 

Mich at 193 (“[T]o the degree that defendant’s refusal to explicitly choose between continued 

representation by appointed counsel and self-representation created any ambiguity regarding 

defendant’s desire to unequivocally waive his right to trial counsel, any ambiguity should have 

been resolved in favor of representation . . . .”); People v Dennany, 445 Mich 412, 444-445; 519 

NW2d 128 (1994).

For these reasons, defendant has failed to establish entitlement to relief on this issue.

C. MCR 6.302, JAWORSKI, AND FACTUAL BASIS

Next, defendant argues that his convictions must be vacated because the trial court failed 

to comply with MCR 6.302(B) and Jaworski when taking his guilty plea, and because the plea 

lacked a sufficient factual basis under MCR 6.302(D). We disagree. 
-6-

“Guilty- and no-contest-plea proceedings are governed by MCR 6.302.” People v Cole, 

491 Mich 324, 330; 817 NW2d 497 (2012). Under MCR 6.302, a plea must be “understanding, 

voluntary, and accurate.” People v Brown, 492 Mich 684, 688-689; 822 NW2d 208 (2012).

4

 

Before accepting a guilty plea, the trial court “must place the defendant or defendants under oath 

and personally carry out subrules (B)-(E).” MCR 6.302(A). See also People v Plumaj, 284 Mich 

App 645, 648; 773 NW2d 763 (2009).

Under MCR 6.302(B), which relates to an understanding plea, the court 

must speak directly to the defendant and determine that he or she understands the 

name of the offense and the maximum possible prison sentence, the trial rights 

being waived, and loss of the right to appeal. Pursuant to MCR 6.302(C), which 

relates to a voluntary plea, the court must make inquiries regarding the existence 

and details of any plea agreements and whether the defendant was promised 

anything beyond what was in the agreement, if any, or otherwise. The court must 

also ask the defendant whether he or she had been threatened and if the plea was 

his or her choice. MCR 6.302(D), which relates to an accurate plea, requires the 

court to establish a factual basis for a guilty plea . . . . Finally, under MCR 6.302(E), 

the court must make additional inquiries, including whether the prosecutor and 

defense counsel are “aware of any promises, threats, or inducements other than 

those already disclosed on the record, and whether the court has complied with 

subrules (B)-(D).” [Id. at 648 n 2.]

“Strict compliance with MCR 6.302 is not essential; rather, our Supreme Court has adopted 

a doctrine of substantial compliance, holding that whether a particular departure from Rule 785.7 

[now MCR 6.302] justifies or requires reversal or remand for additional proceedings will depend 

on the nature of the noncompliance.” Id. at 649 (quotation marks and citation omitted; alteration 

in original).

Defendant raises two distinct challenges to the validity of his plea. First, defendant asserts 

that his guilty plea was not entered voluntarily5because the trial court only questioned him on one 

of the three required Jaworski rights and otherwise failed to comply with the requirements of MCR 

 

4

“[T]he Due Process Clause of the Fourteenth Amendment requires that the plea be voluntary and 

knowing.” Cole, 491 Mich at 333. Thus, the requirements of MCR 6.302 that a plea be 

“voluntary” and “understanding” (i.e., “knowing”) are intended to satisfy due process, although 

the court rule and due process are not perfectly coextensive. See id. at 332. MCR 6.302 also 

requires that a plea be “accurate,” notwithstanding that “the [United States] Supreme Court has 

not acknowledged a Due Process requirement that state courts must first establish an independent 

factual basis before acceptance of a guilty plea.” Oller v Bryant, 650 Fed App’x 598, 601 (CA 10, 

2016). 

5 To be precise, defendant claims that the failure of the trial court to comply with MCR 6.302(B) 

renders his plea involuntary. However, noncompliance with that court rule arguably would mean 

that the plea was not understandingly entered. An involuntary plea occurs when, for example, the 

defendant was threatened into entering the plea. See MCR 6.302(C)(4)(b).
-7-

6.302(B), which include advising the defendant on the specific offenses to which he or she is 

pleading guilty, as well as the maximum prison sentence for those offenses.6 Second, defendant 

asserts that his guilty plea lacked a sufficient factual basis, i.e., the record did not establish that it 

was accurate under MCR 6.302(D). According to defendant, his plea lacked a sufficient factual 

basis because the trial court never established that the second-degree murder was committed 

without justification or excuse, an essential element of that offense. Defendant contends that he 

made clear on the record that he acted in self-defense, placing the trial court on notice that selfdefense was an issue in his case.

With regard to defendant’s first challenge, we conclude that the trial court substantially 

complied with MCR 6.302(B), including conducting the necessary inquiry regarding Jaworski

rights.7 While the trial court only explicitly questioned defendant on the record regarding one 

Jaworski right in confirming that defendant understood that he would forego his right to a jury 

trial by pleading guilty, explicit questioning on each Jaworski right is not always necessary. As 

stated by this Court:

[A] defendant may be advised of his or her [Jaworski] rights either in writing or on 

the record. Either manner is sufficient. However, whatever manner is used, the 

rule makes plain that there must be some colloquy with a defendant on the record 

regarding his or her rights to ensure that the defendant has been advised of those 

rights. That is, even if a defendant is advised of his or her rights in writing, the rule 

mandates that the court shall address the defendant and obtain from the defendant 

orally on the record a statement that the rights were read and understood and a 

waiver of those rights. The trial court need not necessarily reiterate each of the 

individual rights on the record, but it must, at a minimum, verify that the defendant 

did in fact read and understand those rights. In the absence of such a colloquy on 

the record, intelligent waiver of these important rights cannot be presumed. [People 

v Al-Shara, 311 Mich App 560, 570-571; 876 NW2d 826 (2015) (cleaned up).]

 

6 MCR 6.302(B)(1) provides that the trial court must advise the defendant about “the name of the 

offense to which the defendant is pleading,” subrule (B)(2) provides that the trial court must advise 

the defendant about “the maximum possible prison sentence for the offense and any mandatory 

minimum sentence required by law,” and subrule (B)(3) provides that the trial court must advise 

the defendant about several trial rights that he or she is forfeiting, including the three Jaworski

rights. 

7

In Jaworski, 387 Mich at 30-31, the Court held that a guilty plea must be set aside when the 

record of the plea proceedings shows that the defendant was not explicitly advised of the following 

constitutional rights waived by pleading guilty: (1) the right to trial by jury, (2) the right to confront 

one’s accusers, and (3) the privilege against self-incrimination. “If a Jaworski right is omitted 

from the plea proceedings, then reversal is mandated.” People v Saffold, 465 Mich 268, 273; 631 

NW2d 320 (2001). “However, the omission from the plea proceedings of one or another of the 

rights attendant to a trial, other than a Jaworski right, or the imprecise recital of any such right, 

including a Jaworski right, does not necessarily require reversal.” Id. at 273-274.
-8-

In Al-Shara, this Court set aside the defendant’s no-contest plea because the trial court 

failed to mention two of the three Jaworski rights on the record, and because there was no mention 

in the record of the signed form purportedly confirming the defendant’s understanding waiver of 

these rights. Id. at 573-574. While the prosecution argued that the defendant’s uncontested 

signature on the advice-of-rights form alone was sufficient for substantial compliance under MCR 

6.302, this Court rejected this argument. Id. at 574. We explained:

[I]f a written form is used to inform a defendant of his or her rights, two 

requirements are mandatory: (1) the writing must detail the rights in question, and 

(2) the court must conduct an oral colloquy with the defendant, on the record, 

regarding that writing. When a court completely abdicates its obligation to 

personally discuss the writing with a defendant on the record, and the rights 

contained in the writing are not otherwise imparted to a defendant on the record 

during the plea proceedings, we fail to see how the [trial] court can be said to have 

substantially complied with MCR 6.610(E)(4). [Id.]8

Here, in contrast, the trial court did discuss defendant’s written acknowledgment of rights 

on the record when confirming not only that defendant signed the plea acceptance form that 

referenced all of the rights allegedly omitted by the trial court, but also discussed its contents with 

his attorney:

The Court: There are a number of rights on this acceptance form. You went 

over this with your lawyer, correct?

Defendant Spears: Yes.

The Court: And you signed at the bottom, correct?

Defendant Spears: Yes.

Following Al-Shara, this colloquy is a proper method for accepting defendant’s guilty plea 

in substantial compliance with MCR 6.302 and Jaworski. See also MCR 6.302(B). Despite 

defendant’s now contradiction that he never read this form, but merely signed where directed by 

his counsel, he explicitly confirmed when questioned on the record by the trial court that he 

reviewed the form with his counsel and then signed it.

 

8 Al-Shara concerned pleas in the district court, so MCR 6.610 was the applicable court rule in that 

case. However, the holding of Al-Shara is equally applicable here, particularly because MCR 

6.302(B) provides as follows:

The requirements of subrules (B)(3) and (B)(5) may be satisfied by a writing 

on a form approved by the State Court Administrative Office. If a court uses a 

writing, the court shall address the defendant and obtain from the defendant orally 

on the record a statement that the rights were read and understood and a waiver of 

those rights. The waiver may be obtained without repeating the individual rights.
-9-

In addition to arguing that he was not properly advised of his Jaworski rights, defendant 

also argues that the trial court failed to advise him of the names of the offenses to which he was 

pleading guilty, see MCR 6.302(B)(1), the maximum possible prison sentence, see MCR 

6.302(B)(2), and the various trial rights that he was waiving, see MCR 6.302(B)(3). We disagree. 

Concerning MCR 6.302(B)(1), while the trial court itself did not advise defendant of the names of 

the offenses to which he was pleading guilty, the prosecution noted at the plea hearing that 

defendant would be pleading guilty “to a reduced count one of second degree murder and count 

three weapons felony firearm.” Later, the prosecution again noted that defendant would be 

pleading guilty “to a reduce[d] count one murder in the second degree as well as count three

weapons felony firearm.” 

Our Supreme Court has recognized that “[a] guilty plea conviction will not be reversed if 

the judge engages in the required colloquy but fails to mention an item which the record shows 

was established through, for example, an opening statement of or interjection by the prosecutor or 

defense counsel in the hearing of the judge and defendant.” In re Guilty Plea Cases, 395 Mich 96, 

114-115; 235 NW2d 132 (1975). This is what occurred at defendant’s plea hearing. See id. See 

also People v Saffold, 465 Mich 268, 278; 631 NW2d 320 (2001) (explaining that in Guilty Plea 

Cases, the Court “approved cases where the trial judge did not personally address the defendant 

by informing him of the maximum sentence . . . or the charge that the defendant was facing” 

because “the prosecutor’s statement of that information in the presence of the defendants was 

sufficient”) (emphasis omitted). Similarly, concerning MCR 6.302(B)(2), the prosecution noted 

at the plea hearing that “if the defendant were found guilty of second degree murder, this Court 

could still impose a maximum sentence of life in prison at the time of sentencing even if he were 

found guilty of second degree murder.” The prosecution also noted the consecutive, mandatory 

two years’ imprisonment for felony-firearm. Thus, these statements on the record sufficiently

satisfied MCR 6.302(B)(2). Finally, concerning MCR 6.302(B)(3), the plea acceptance form listed 

all of the trial rights mentioned by that court rule and, as explained supra, defendant confirmed on 

the record that he discussed the form with his counsel and that he then signed it. This was an 

acceptable method of advisement. See MCR 6.302(B). Accordingly, there was no violation of 

MCR 6.302(B). 

With regard to defendant’s second challenge, we also conclude that the trial court 

established a sufficient factual basis for defendant’s guilty plea to second-degree murder under 

MCR 6.302(D).

9

 Under that court rule, the trial court must establish a factual basis that “the 

defendant is guilty of the offense charged, or the offense to which the defendant is pleading.” 

MCR 6.302(D)(1). A factual basis exists when “the fact-finder could have found the defendant 

guilty on the basis of the facts elicited from the defendant at the plea proceeding.” People v 

Fonville, 291 Mich App 363, 377; 804 NW2d 878 (2011).

A factual basis to support a plea exists if an inculpatory inference can be drawn 

from what the defendant has admitted. This holds true even if an exculpatory 

inference could also be drawn and the defendant asserts that the latter is the correct 

inference. Even if the defendant denies an element of the crime, the court may 

 

9 Defendant does not challenge his guilty plea to felony-firearm.
-10-

properly accept the plea if an inculpatory inference can still be drawn from what 

the defendant says. [Id. (quotation marks and citation omitted)]

More specifically, our Supreme Court has indicated that a “factual basis” is established 

when each element of a crime is shown on the record. See Guilty Plea Cases, 395 Mich at 128-

129 (remanding two cases to the respective trial courts to allow the prosecution an opportunity to 

show “the missing element”). See also People v Blue, 178 Mich App 537, 539; 444 NW2d 226 

(1989) (“Defendant’s case can be likened to those guilty plea cases which have been remanded to 

allow the prosecution to show the missing element in order to establish a factual basis for the 

plea.”). “Elements of crime” is defined as “the constituent parts of a crime that the prosecution 

must prove to sustain a conviction.” People v Lively, 470 Mich 248, 258 n 11; 680 NW2d 878 

(2004) (cleaned up).

Michigan courts have commonly recited the following four elements for second-degree 

murder: (1) death, (2) caused by the defendant, (3) with malice,10 and (4) without justification or 

excuse. See, e.g., People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998) (“The 

elements of second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with 

malice, and (4) without justification or excuse.”); People v Bergman, 312 Mich App 471, 487; 879 

NW2d 278 (2015) (“The elements of second-degree murder are (1) a death, (2) the death was 

caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did 

not have lawful justification or excuse for causing the death.”) (quotation marks and citation 

omitted). Other cases have simply referred to the fourth element as “without justification.” See, 

e.g., People v Mendoza, 468 Mich 527, 534; 664 NW2d 685 (2003) (“[T]he elements of seconddegree murder [are] (1) death, (2) caused by defendant’s act, (3) with malice, and (4) without 

justification.”).

In this case, defendant does not dispute that the record of the plea hearing established that 

he shot and killed the decedent with the requisite state of mind for second-degree murder, thus 

eliciting sufficient facts on the first three elements of that offense identified in cases such as 

Goecke. However, as defendant correctly observes, he was never asked whether the shooting was 

unjustified or unexcused. The question before us is whether the failure to affirmatively establish 

that the shooting was not justified or excused, at least with respect to self-defense, constitutes a 

failure to establish an element of second-degree murder. To answer this question, we briefly 

consider the historical development of that offense.

Murder was a common-law offense. See People v Couch, 436 Mich 414, 417-418; 461 

NW2d 683 (1990). However, that offense is now defined by statute. “Criminal homicide, or more 

 

10 “ ‘Malice’ generally is defined in a criminal context as the intent, without justification or excuse, 

to commit a wrongful act, a reckless disregard of the law or of a person’s legal rights, or ill will.” 

People v Rogers, 338 Mich App 312, 331; 979 NW2d 747 (2021) (cleaned up). For second-degree 

murder, “[m]alice is defined as the intent to kill, the intent to cause great bodily harm, or the intent 

to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such 

behavior is to cause death or great bodily harm.” People v Goecke, 457 Mich 442, 464; 579 NW2d 

868 (1998). 
-11-

precisely murder and manslaughter, has been a statutory offense in Michigan since 1846, when the 

state’s first Penal Code was enacted.” Id. at 418. 

MCL 750.316 specifically defines first-degree murder as murder occurring under certain 

circumstances. For example, MCL 750.316(1)(a) provides that first-degree murder includes 

“[m]urder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and 

premeditated killing.” MCL 750.317 defines second-degree murder as follows: “All other kinds 

of murder shall be murder of the second degree, and shall be punished by imprisonment in the state 

prison for life, or any term of years, in the discretion of the court trying the same.” In other words, 

as our Supreme Court has explained, “second-degree murder is defined residually as ‘(a)ll other 

kinds of murder.’ ” People v Hoffmeister, 394 Mich 155, 158; 229 NW2d 305 (1975), quoting 

MCL 750.317. “Second-degree murder evolved from common-law murder, under which ‘malice 

aforethought’ was understood for centuries to be the grand criterion distinguishing murder from 

less wicked homicides.” People v Baskerville, 333 Mich App 276, 284-285; 963 NW2d 620 (2020) 

(some quotation marks and citation omitted).

The common law established various defenses to murder. Ordinarily, those defenses were, 

and are, known as “affirmative defenses.” “An affirmative defense admits the crime but seeks to 

excuse or justify its commission. It does not negate specific elements of the crime.” People v 

Dupree, 486 Mich 693, 704 n 11; 788 NW2d 399 (2010) (emphasis added). Common-law 

affirmative defenses to murder include, but are not limited to, insanity, People v Evans, 335 Mich 

App 76, 85; 966 NW2d 402 (2020), self-defense, Dupree, 486 Mich at 707, involuntary 

intoxication, People v Caulley, 197 Mich App 177, 188; 494 NW2d 853 (1992), and fleeing felon, 

Couch, 436 Mich at 420-421.

11

 Other defenses to murder, such as the defense of accident, are not 

affirmative defenses because they actually negate an element of the offense. See People v Propp, 

508 Mich 374, 382; 976 NW2d 1 (2021).

Then-existing common-law affirmative defenses to murder were adopted by our 

Legislature by enacting the homicide statutes in 1846. “Where a legislature borrows terms of art 

in which are accumulated the legal tradition and meaning of centuries of practice, it presumably 

knows and adopts the cluster of ideas that were attached to each borrowed word.” Couch, 436 

Mich at 419 (cleaned up). Thus, for example, by enacting homicide statutes in 1846, “the 

Legislature is presumed to have accepted the then-existing common-law rule that any private 

person (and a fortiori a peace-officer) may arrest a fleeing felon and if they kill him, provided he 

cannot otherwise be taken, it is justifiable.” Id. at 420 (cleaned up).

 

11 We recognize that Evans discussed the affirmative defense of insanity to murder in the context 

of the insanity statute, and Caulley discussed the affirmative defense of involuntary intoxication 

to murder in the context of the insanity statute as well. However, it is well-established that both 

insanity and involuntary intoxication were affirmative defenses at common law. See People v 

McRunels, 237 Mich App 168, 172; 603 NW2d 95 (1999) (insanity); Farmer v State, 411 SW3d 

901, 913 (Tex Crim App, 2013) (COCHRAN, J., concurring) (involuntary intoxication). 
-12-

With these principles in mind, for the following five reasons, we conclude that the oftenrecited fourth element of second-degree murder, “without justification or excuse,” actually is part 

of the “cluster of ideas” of second-degree murder. It is not an element of the offense of seconddegree murder.

12

First, “[a]t early common law, homicide was either justifiable, excusable, or felonious.” 

People v Wafer, 509 Mich 31, 42; 983 NW2d 315 (2022). See also Mendoza, 468 Mich at 533

(“Common-law murder encompasses all killings done with malice aforethought and without 

justification or excuse.”). While the nuanced common-law development of homicide and 

common-law murder is not particularly relevant for our purposes today, the term “without 

justification or excuse” is, in our view, simply a reiteration of the longtime understanding that a 

defendant cannot be guilty of second-degree murder when the homicide is justified or excused.

Second, the words “justification” and “excuse” suggest the legal definition of “affirmative 

defense.” See People v Pegenau, 447 Mich 278, 319; 523 NW2d 325 (1994) (BOYLE, J.) (“[A]n 

affirmative defense in effect concedes the facial criminality of the conduct and presents a claim of 

justification or excuse . . . .”); Dupree, 486 Mich at 704 n 11 (quoting same). Moreover, “[a]n 

affirmative defense does not negate selected elements or facts of the crime.” People v Mette, 243 

Mich App 318, 329; 621 NW2d 713 (2000) (quotation marks and citations omitted). Because an 

affirmative defense admits that the elements of the crime are present, an affirmative defense—i.e., 

a justification or excuse—cannot itself be an element of the crime. For example, as this case 

illustrates, the assertion by defendant that he acted in self-defense is a concession that the elements 

of second-degree murder are satisfied. In other words, because an affirmative defense such as selfdefense “admits the crime,” Dupree, 486 Mich at 704 n 11, it is illogical to conclude that selfdefense also establishes that the other elements of the crime did not occur.13

Third, the common formulation of the distinction between first- and second-degree murder 

is that “second-degree murder is first-degree murder minus premeditation” or the enumerated 

predicate felony. People v Oros, 502 Mich 229, 240; 917 NW2d 559 (2018) (cleaned up). 

“Without justification or excuse” is not an element of first-degree murder under MCL 750.316. It 

seemingly follows that it cannot be an element of second-degree murder under MCL 750.317 

because a contrary conclusion would add an element to second-degree murder that is not found in 

first-degree murder. In other words, if “without justification or excuse” is an element of second-

 

12 Our conclusion in this regard does not necessarily diminish the importance of the “without 

justification or excuse” aspect of second-degree murder. “[W]here relevant, instructions regarding 

excuse, justification, or mitigation must be given along with the intent instructions in order to 

reduce the offense of murder to manslaughter, to show that the killing was accidental, or to show 

some justification such as self-defense.” People v Woods, 416 Mich 581, 627; 331 NW2d 707 

(1982). 

13 The common law ordinarily provided that the prosecution had the burden of disproving an 

affirmative defense beyond a reasonable doubt once the defendant raised a triable issue as to that 

affirmative defense. See, e.g., Dupree, 486 Mich at 709-710 (self-defense); McRunels, 237 Mich 

App at 172 (insanity); People v Leffew, 508 Mich 625, 644; 975 NW2d 896 (2022) (defense of 

others). 
-13-

degree murder, there would be cases in which it would be easier to establish first-degree murder 

under MCL 750.316 as opposed to second-degree murder under MCL 750.317. This is contrary 

to principles of statutory interpretation. See Empire Iron Mining Partnership v Orhanen, 455 Mich 

410, 421; 565 NW2d 844 (1997) (“We will not judicially legislate by adding language to the 

statute.”).

Fourth, the development in our caselaw of the “without justification or excuse” element is 

questionable. The first decision of our Supreme Court to identify the commonly recited four 

elements of second-degree murder occurred in People v Bailey, 451 Mich 657, 669; 549 NW2d 

325 (1996), which stated that the elements of that offense were as follows:

The elements of second-degree, or common-law, murder are “(1) a death, (2) 

caused by an act of the defendant, (3) absent circumstances of justification, excuse, 

or mitigation, (4) done with an intent to kill, an intent to inflict great bodily harm, 

or an intent to create a very high risk of death with the knowledge that the act 

probably will cause death or great bodily harm.” People v Dykhouse, 418 Mich 

488, 508-509, 345 NW2d 150 (1984).

The Bailey decision’s quotation of Dykhouse is a quote from the dissent in that case where

it also was explained, correctly in our view, that “unless the defendant introduces evidence that 

circumstances of justification, excuse, or mitigation exist, the prosecution, in order to obtain a 

conviction of murder in either degree, need not prove beyond a reasonable doubt the absence of 

those circumstances.” Dykhouse, 418 Mich at 509 n 13 (CAVANAGH, J., dissenting). Thus, the 

origin of the “without justification or excuse” element in our Supreme Court’s caselaw arises from 

a dissent which itself recognized that it is not an element of the statutory offense of second-degree 

murder that must be proven beyond a reasonable doubt when a defendant is charged with that 

crime.

14

Fifth, we find persuasive the report and recommendation of the United States Magistrate 

Judge in Walker v Skipper, 2021 WL 4129451 (WD Mich, 2021).15 In that case, the petitioner 

argued that his guilty plea to second-degree murder in the Michigan state court was invalid because 

he was not aware that “without justification or excuse” was an element of the offense, and that his 

 

14 The earliest decision of this Court identifying the “without justification or excuse” fourth

element is People v Hawkins, 80 Mich App 481; 264 NW2d 33 (1978), overruled in part on other 

grounds by People v Williams, 422 Mich 381; 373 NW2d 567 (1985). Hawkins stated as follows: 

“To prove the defendant guilty of second-degree murder the prosecution must establish, beyond a 

reasonable doubt, the following: (1) that a death occurred, (2) which was caused by the defendant, 

(3) without justification or excuse and (4) with malice aforethought.” Hawkins, 80 Mich App at 

486 n 3. In support of that proposition, Hawkins cited MCL 750.317 and People v Fountain, 71 

Mich App 491; 248 NW2d 589 (1976). However, neither MCL 750.317 nor Fountain stand for 

the proposition that “without justification or excuse” is an element of second-degree murder. 

15 The report and recommendation was adopted by the federal district judge “as the Opinion of the 

Court.” Walker v Skipper, 2021 WL 4125382 (WD Mich, 2021).
-14-

shooting of the victim was justified or excused by the doctrines of self-defense and fleeing felon. 

Id. at 6. The state court denied relief. Id. The magistrate judge similarly concluded that relief 

was not warranted, stating that “[t]he state court’s determination that ‘without justification or 

excuse’ is not an element of the crime of second-degree murder, such that Petitioner need not be 

aware of the ‘element’ to knowingly enter his plea, is axiomatically correct.” Id. at 7. The 

magistrate judge observed that although some cases such as Goecke have indicated that “without 

justification or excuse” is an element of second-degree murder, other cases such as Oros have not 

identified that element of murder. Id. at 7-8. More importantly, the magistrate judge explained, 

affirmative defenses such as self-defense and fleeing felon do not “factually challenge that the 

criminal act took place,” but rather, “simply claim[] that the otherwise criminal act was excused 

or justified under the law.” Id. at 9. The magistrate judge suggested that the “without justification 

or excuse” element is better understood as part of “[t]he ‘cluster of ideas’ attached to murder,” and 

ultimately determined that the state court was not required to advise the petitioner about potential 

affirmative defenses before accepting his plea. Id. at 7, 9-10. We find the magistrate judge’s 

analysis persuasive.16

For these reasons, we conclude that “without justification or excuse” is not a true element 

of second-degree murder.17 Instead, it is part of the “cluster of ideas” about the act of murder that 

our Legislature adopted in 1846 by enacting the homicide statutes.18 Therefore, because “without 

 

16 “While the decisions of lower federal courts and other state courts are not binding on this Court, 

they may be considered as persuasive authority.” People v Walker, 328 Mich App 429, 444-445; 

938 NW2d 31 (2019) (quotation marks and citations omitted).

17 We believe that such a conclusion is compelled by common sense. We are unaware of any 

cases, murder or otherwise, in which a trial court, to validity accept a defendant’s plea to an 

offense, must affirmatively establish the absence of all justifications or excuses recognized by law. 

Compare In re Certified Question, 425 Mich 457, 465-466; 390 NW2d 620 (1986), superseded by 

statute as stated in Metrich v Lancaster, 569 US 351; 133 S Ct 1781; 185 L Ed 2d 988 (2013) 

(explaining that sanity is not an element of rape or kidnapping because the “burden of going 

forward and establishing defendant’s sanity beyond a reasonable doubt only arises following the 

defendant’s introduction of evidence of insanity (i.e., affirmative defense), which is not true of the 

stated elements of an offense,” and in contrast, “[t]he prosecution must prove the elements of a 

crime beyond a reasonable doubt even if the defendant does not introduce any evidence 

whatsoever”). In fact, MCR 6.302(B)(1) specifically provides that, when advising the defendant 

about the ramifications of his or her plea, “the court is not obliged to explain the elements of the 

offense, or possible defenses.” (Emphasis added.) 

18 If our conclusion in this regard is incorrect, the model jury instruction governing second-degree 

murder, M Crim JI 16.5, must immediately be changed. That instruction provides that the jury 

need not be instructed on the element of “without justification or excuse” when “there is no 

evidence of justification or excuse, and the jury is not being instructed on manslaughter or any 

offense less than manslaughter.” If “without justification or excuse” is an element of seconddegree murder, then the instruction clearly violates due process because “due process requires the 

prosecution to prove every element beyond a reasonable doubt.” Oros, 502 Mich at 240 n 3.
-15-

justification or excuse” is not an element of the offense at issue, the trial court was not required to 

establish a factual basis in that regard under MCR 6.302(D)(1).19

Accordingly, we conclude that the trial court did not violate MCR 6.302(B) or Jaworski

when accepting defendant’s guilty plea, and that the plea did not lack a sufficient factual basis 

under MCR 6.302(D).

20

D. KILLEBREW

Finally, defendant argues that the trial court erred by accepting his guilty plea because the 

trial court applied coercion in violation of Killebrew. According to defendant, the prosecution’s 

statement at the plea hearing that it would seek an upward departure were defendant convicted of 

second-degree murder at trial essentially was a threat to induce his guilty plea, and the trial court’s 

confirmation and endorsement of the prosecution’s statement created a coercive environment 

contrary to Killebrew.

21

 We disagree.

 

19 Although we have not performed an exhaustive search, it appears that Michigan is an outlier by 

identifying “without justification or excuse” as an element of second-degree murder. See, e.g., 

Mata-Medina v People, 71 P3d 973, 978 (Colo, 2003); People v Jeffries, 164 Ill2d 104, 113-114; 

646 NE2d 587 (1995); Brown v State, 270 Ind 177, 178; 383 NE2d 1029 (1978); State v Charles, 

787 So2d 516, 518 (La Ct App, 2001); Williams v State, 251 Md App 523, 570; 254 A3d 556 (Md

Ct App, 2021); Commonwealth v Earle, 458 Mass 341, 346; 937 NE2d 42 (2010); State v Angulo, 

471 NW2d 570, 573 (Minn Ct App, 1991); State v Powell, 872 P2d 1027, 1032 (Utah, 1994).

In New Mexico, “[t]he elements of second-degree murder are: (1) Defendant killed another human 

being without lawful justification; and (2) Defendant knew that his acts created a strong probability 

of death or great bodily harm to another human being.” State v Mann, 129 NM 600, 605; 11 P3d 

564 (NM Ct App, 2000). However, the New Mexico Supreme Court has explained that, despite 

the fact that the pertinent statute “defines homicide as the killing of another human being ‘without 

lawful justification or excuse,’ ” that aspect of the statute “does not create an element of the crime 

which must be proven by the prosecution.” State v Osborne, 111 NM 654, 659; 808 P2d 624 

(1991).

20 Defendant argues that the trial court was required to negate self-defense on the record when 

accepting his guilty plea because he had previously identified that the shooting was an act of selfdefense. We disagree. We are unable to identify anything in the record before the plea hearing 

establishing that defendant was claiming self-defense. Defendant cites to a June 2, 2016 pretrial 

hearing, during which he stated that “I’m sitting here stating that I’m not guilty based upon reasons 

of someone else came at me with a gun.” However, this isolated, vague statement does not amount 

to a claim of self-defense.

21 Defendant also briefly argues that the prosecution’s statement violated due process because it 

threatened to punish him for exercising his constitutional right to a jury trial. See People v Ryan, 

451 Mich 30, 45; 545 NW2d 612 (1996) (“It is a violation of due process to punish a person for 

asserting a protected statutory or constitutional right.”).
-16-

In Killebrew, our Supreme Court recognized “that the defendant may be persuaded to 

surrender his valuable right to trial with its accompanying rights and procedural safeguards in 

exchange for concessions aimed at sentence reduction and certainty.” Killebrew, 416 Mich at 200. 

However, when sentence bargaining occurs between the prosecution and the defendant, “judicial 

involvement in the procedure must be kept to a minimum to avoid a coercive effect on the 

defendant and loss of public confidence in the judicial system . . . .” Id. at 202. The Court 

continued:

The problem of coercion arises from the disparate bargaining positions of 

the judge and the defendant: the judge wields the decisive sentencing power to 

which the defendant must submit. Should the trial judge exert or even seem to exert 

the authority of this position to induce the defendant to plead guilty, the 

voluntariness of the defendant’s subsequent waiver of his right to a jury trial 

becomes questionable.

* * *

Nor can we fail to consider the subtle pressures that may be exercised by a 

judge against a defendant who rejects an opportunity, presented by such a response 

as the judge here proposes to make, the acceptance of which may relieve the judge 

of a lengthy trial. Any predilections of guilt that a judge might hold regarding a 

defendant must inevitably be reinforced by the knowledge that the defendant wishes 

to engage in plea bargaining discussions. While these factors inhere in all plea 

bargaining agreements, their effect on the voluntariness of the plea and the 

subsequent trial could only be greater where the judge is himself the active 

participant in constructing the terms of the rejected agreement.

* * *

Therefore, judicial participation must be limited in order to minimize the 

coercive effect of such participation on the defendant, to ensure the voluntariness 

of plea, and to preserve public confidence in the judicial system.

* * *

[W]e now hold that a trial judge shall not initiate or participate in discussions aimed 

at reaching a plea agreement. He may not engage in the negotiation of the bargain 

itself. The trial judge’s role in the plea-bargaining procedure shall remain that of a 

detached and neutral judicial official. [Id. at 202-205 (cleaned up).]

In this case, the prosecution stated at the plea hearing:

If the defendant were to be actually found guilty of a lesser offense by a jury of 

second[-]degree murder, it would be my intention to seek an upper departure from 

the guideline range, and ask this Court to sentence the defendant to 30 to 60 years 

if he were to go to trial and be found guilty of the lesser of second[-]degree murder. 
-17-

So I will be seeking an upper departure if he is found guilty of second[-]degree 

murder.

Shortly after the prosecution’s statement, the trial court said, “The sentencing agreement I 

don’t usually deviate from it. But if there is a guilty verdict after a jury trial, I can do an upward 

departure according to law.”

As an initial matter, the prosecution’s statement is consistent with its authority to engage 

in sentence negotiations, and particularly its authority to persuade a defendant to plead guilty in 

exchange for concessions regarding the charged offense and corresponding sentence. See id. at 

199-200 (explaining that the prosecution “may agree with the defendant to bring reduced charges 

or to dismiss certain charges or cases altogether,” and also “may present to the court a sentence 

agreement stating that the parties agree that a specifically designated sentence is the appropriate 

disposition of the case”). Defendant, in faulting the prosecution’s statement, primarily cites two 

cases, both unrelated to guilty pleas and addressing due-process violations for vindictive 

prosecution, see United States v Poole, 407 F3d 767 (CA 6, 2005); People v Ryan, 451 Mich 30; 

545 NW2d 612 (1996). But the defendant makes no argument here that the prosecution’s action 

was unconstitutionally vindictive. We, therefore, turn our analysis to the primary error asserted, 

the trial court’s alleged Killebrew violation.

Contrary to defendant’s argument, the trial court did not create impermissible coercion as 

contemplated by Killebrew. The trial court never engaged in sentencing negotiations with 

defendant but, instead, accurately acknowledged its authority to impose an upward departure after 

trial. In fact, the trial court qualified its statement by noting that it “can do” an upward departure, 

not that it “would do” or “would be inclined to” impose an upward departure. Although one could 

construe the trial court’s brief statement, if implying that defendant may be subject to a lighter 

sentence for pleading guilty, as “seem[ing] to exert the authority of [the court’s] position to induce 

the defendant to plead guilty,” Killebrew, 416 Mich at 202, this type of semantic differentiation—

specifically, a defendant’s ability to secure a reduced sentence by pleading guilty—reflects the 

precise value a defendant may gain in the plea-bargaining process as stated in Killebrew. Simply 

put, we cannot fault the trial court for informing defendant that he legally may be subject to a 

sentence of more than 20 years in prison for second-degree murder if he elects to proceed to trial.

More importantly, the trial court never initiated or participated in any negotiations for the 

plea agreement itself. Instead, the record is clear that the prosecution and defendant discussed the 

terms of the plea agreement before the plea hearing, that defendant discussed the matter off-therecord with his counsel during the plea hearing, and that after the discussion, he decided to enter 

into the plea agreement. Therefore, the trial court’s isolated and accurate description of its 

sentencing authority did not violate Killebrew.

IV. CONCLUSION

None of the arguments raised by defendant on appeal have any merit. Therefore, he has 

failed to establish entitlement to relief under MCR 6.508(D). We affirm.
-18-

/s/ Michael J. Riordan 

/s/ Mark J. Cavanagh 

/s/ Mark T. Boonstra